Ms Beti Olive Kamya in her article published in the Daily Monitor of August 5, in response to the aertorial I published on behalf of the Centre for Constitutional Governance (CCG) on July 11, suggests that CCG failed to do a brief critique of the Constitution and that I should not have stated that the 1995 Constitution was one of the best without stating the parameters used to reach such a conclusion.
Kamya is spot on when it comes to the fusion of the executive and legislature as well as the involvement of the military in politics. If the three arms of government are to properly function, there should be a clear separation but also the different arms of government should be empowered to fully provide the checks and balances in the day-to-day running of government.
It’s important to note, however, that there must be a constitutional balance in the exercise of these powers.
I differ with Kamya on the issue of executive or presidential powers and the notion that the 1995 Constitution creates an imperial presidency.
There is nowhere in our Constitution that the President acts alone! He either acts on the recommendation of bodies like the Judicial Service Commission.
Besides this, his decisions are subject to Parliamentary approval. All Presidential appointments are subject to the approval of Parliament and that is one of the cardinal principles of the doctrine of separation of powers.
So, where is the problem? That can only mean that it’s the weak institutions and the people who represent Ugandans in these weak institutions that are the problem. This, in my view, is Uganda’s fundamental governance problem but not the Constitution.
In the United States separation of powers case, the US Supreme Court on 2nd July 2010 held that “The Constitution that makes the president accountable to the people for executing the laws also gives him the power to do so. That power includes, as a general matter, the authority to remove those who assist him in carrying out his duties,” the chief justice wrote.
“Without such power, the president could not be held fully accountable for discharging his own responsibilities the buck would stop somewhere else.”
The 1995 Constitution was made in the most democratic manner possible that is unprecedented in its participatory character. The ideal situation is that if one came up with an adequate constitution, it would provide a basis for good and democratic governance but in Uganda’s case, this school of thought overlooks the impact of a country’s political, historical, and social conditions that have conspired to create undemocratic and exclusionary processes – which in turn have contributed to the creation of autocratic and unstable regimes with highly polarised polities and civil strife.
The biggest lacuna in the 1995 Constitutional making process was the continued curtailing of political parties which could not mobilise and participate freely and the same conditions unfortunately still prevail in Uganda today.
During the 1995 Constitutional making process, there were mainly four controversial issues namely: multiparty vs movement system, the role of political parties, land and cultural or traditional leaders.
The Constitution provided for ways in which these controversial issues would be resolved progressively.
However, the weakness of our Parliament has subsequently led to the creation of life presidency by lifting presidential term limits and the enactment of draconian laws like the Public Order Management Act.
Lastly, amending the Constitution does not mean it has failed the test of time, or that it is such a bad law.
Laws represent views, wishes and aspirations of the people and these are not statistic. They keep changing from time to time and any progressive society keeps amending its laws to suit the challenges of the day.
The unfortunate bit is that when an opportunity came to amend the Constitution, opportunism took over and overshadowed the common good of making amendments beyond regime survival and longevity.
Case in point was the manner in which the Referendum Bill 2000 was enacted and later successfully challenged in the Constitutional Court and the hurried manner in which the First Constitutional Amendment was made through the Constitutional Amendment Act 2000, Act No 13 of 2000.
This manipulation later translated into a selfish culture and a permanent failure on the part of Parliament to legislate for posterity. The manner in which the 2005 Constitutional amendments were passed characterised with stories of bribery, left a lot to be desired and it can only be hoped that history will not repeat itself, with the already on-going cash bonanza stories like bailouts!
The functioning of our Parliament, a body charged with the duty of protecting the Constitution and promoting democratic governance in Uganda, is a classic example of how weak institutions and the people that represent Ugandans in these weak institutions are the problem in aancing Uganda’s democratic agenda BUT not the Constitution.
Ms Bireete is a lawyer and a director of programmes, Centre for Constitutional Governance. s.bireete@ccgeaorg
SOURCE: Daily Monitor